Police Civil Liability: Lessons From the Brooks Case
by A discussion of whether the negligence claim in Brooks v Commissioner of Police for Metropolis [2005] UKHL 24, [2005] one WLR 1495 should have been allowed, and what alternative remedies and avenues of accountability (both legal and other) would have been available to Mr Brooks in New Zealand.
Police Civil Liability in New Zealand:
A legal analysis based on the factual matrix in
Brooks v Commissioner of Police for the Metropolis
[2005] UKHL 24, [2005] 1 WLR 1495
Benjamen Franklen GUSSEN
June 2009
On the evening of 22 April 1993, in south-east London, a gang of white teenagers attacked Stephen Lawrence and Duwayne Brooks, for no other reason than being black. Stephen was murdered; Brooks traumatized. Enter the police. A 1999 public inquiry found that the force was “institutionally racist,”[1] and that “Mr Brooks was stereotyped as a young black [which resulted] in the collective failure of those involved to treat him properly…”[2]These tragic events form the factual background that this paper investigates. The paper discusses whether the Brooks case negligence claim against the police should have been allowed, and the adequacy of available accountability venues (both legal and other) in New Zealand.[3]
Put succinctly, Mr Brooks’ negligence claim could not, should not, and would not succeed. It could not succeed because Mr Brooks is likely to fail on at least one element of the tort of negligence[4]—and even if he does not, the quantum of damages will be de minimis, given causal uncertainty. It should not succeed because negligence—an unintentional tort, is not suited to assigning liability on the constitutional, racism-pregnant, undertones in the case. And it would not succeed, given government’s apprehension, including the judiciary, when it comes to alienating their most effective apparatus: the police—all forms of “alchemic technologies”[5] can and will be employed to ensure that outcome. Mr Brooks’ best option lies inevitably outside government. Enter the media: Mr Brooks should take his case directly to the people.[6] Finally, the paper advocates a strict accountability model where police is held liable once (material contribution) causation is established.
Part I: Analysis of the Negligence Claim[7] [8]
It is submitted that the New Zealand Supreme Court (NZSC) will follow Couch v Attorney-General [2008] 3 NZLR 725 and not strike out a Brooks type negligence claim. Although in Gregory v Gollan [2009] NZSC 29 the NZSC did not seem concerned with the High Court’s striking out of a similar claim, Gregory can be distinguished given Mr Brooks is a victim and a witness, not a suspect,[9] which overcomes the lack of proximity argued where the claimant is a suspect,[10] and in turn overcome policy considerations against finding a duty.[11]
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